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The following language shall be made part of the contract of assistance:
The terms and conditions set forth below shall apply for the protection of
the transportation related employees in the transportation service area of the
project represented by [name of union or unions]. The term "Recipient,"
as used herein, shall refer to the [name of recipient(s) (this will include
the applicant if it is also a recipient and has no protections)].
(1) The Project shall be carried out in such a manner and upon such terms
and conditions as will not adversely affect employees of the Recipient and of
any other surface public transportation provider in the transportation service
area of the Project. It shall be an obligation of the Recipient to assure that
any and all transportation services assisted by the Project are contracted for
and operated in such a manner that they do not impair the rights and interests
of affected employees. The term "Project," as used herein, shall not
be limited to the particular facility, service, or operation assisted by Federal
funds, but shall include any changes, whether organizational, operational, technological,
or otherwise, which are a result of the assistance provided. The phrase "as
a result of the Project," shall when used in this arrangement, include
events related to the Project occurring in anticipation of, during, and subsequent
to the Project and any program of efficiencies or economies related thereto;
provided, however, that volume rises and falls of business, or changes in volume
and character of employment brought about solely by causes other than the Project
(including any economies or efficiencies unrelated to the Project) are not within
the purview of this arrangement.
An employee covered by this arrangement, who is not dismissed, displaced or
otherwise worsened in his/her position with regard to his/her employment as
a result of the Project, but who is dismissed, displaced or otherwise worsened
solely because of the total or partial termination of the Project or exhaustion
of Project funding shall not be deemed eligible for a dismissal or displacement
allowance within the meaning of paragraphs (6) and (7) of the National (Model)
Section 13(c) Agreement.
(2)(a) Where employees of a Recipient are represented for collective bargaining
purposes, all Project services provided by that Recipient shall be provided
under and in accordance with any collective bargaining agreement applicable
to such employees which is then in effect.
(2)(b) The Recipient shall provide to all affected employees sixty (60) days'
notice of intended actions which may result in displacements or dismissals or
rearrangements of the working forces as a result of the Project. In the case
of employees represented by a union, such notice shall be provided by certified
mail through their representatives. The notice shall contain a full and adequate
statement of the proposed changes, and an estimate of the number of employees
affected by the intended changes, and the number and classifications of any
jobs within the jurisdiction and control of the Recipient, including those in
the employment of any entity bound by this arrangement pursuant to paragraph
(11), available to be filled by such affected employees.
(2)(c) The procedures of this subparagraph shall apply to cases where notices
involve employees represented by a union for collective bargaining purposes.
At the request of either the Recipient or the representatives of such employees
negotiations for the purposes of reaching agreement with respect to the application
of the terms and conditions of this arrangement shall commence immediately.
These negotiations shall include determining the selection of forces from among
the urban mass transportation employees who may be affected as a result of the
Project, to establish which such employees shall be offered employment for which
they are qualified or can be trained. If no agreement is reached within twenty
(20) days from the commencement of negotiations, any party to the dispute may
submit the matter to dispute settlement procedures in accordance with paragraph
(4) of this arrangement. Unless the parties otherwise mutually agree in writing,
no change in operations, services, facilities or equipment within the purview
of this paragraph (2) shall occur until after either: 1) an agreement with respect
to the application of the terms and conditions of this Arrangement to the intended
change(s) is reached; 2) the decision of the arbitration panel has been rendered
pursuant to this subparagraph (c); or 3) an arbitration board selected pursuant
to Paragraph (4) of this Arrangement determines that the intended change(s)
may be instituted prior to the finalization of implementing arrangements.
(2)(d) In the event of a dispute as to whether an intended change within the
purview of this paragraph (2) may be instituted at the end of the 60-day notice
period and before an implementing agreement is reached or a final arbitration
decision is rendered pursuant to subparagraph (c), any involved party may immediately
submit that issue to arbitration under paragraph (4) of this arrangement. In
any such arbitration, the arbitrator shall rely upon the standards and criteria
utilized by the Surface Transportation Board (and its predecessor agency, the
Interstate Commerce Commission) to address the "preconsummation" issue
in cases involving employee protections pursuant to 49 U.S.C. Section 11326
(or its predecessor, Section 5(2)(f) of the Interstate Commerce Act, as amended).
If the Recipient demonstrates, as a threshold matter in any such arbitration,
that the intended action is a trackage rights, lease proceeding or similar transaction,
and not a merger, acquisition, consolidation, or other similar transaction,
the burden shall then shift to the involved labor organization(s) to prove that
under the standards and criteria referenced above, the intended action should
not be permitted to be instituted prior to the effective date of a negotiated
or arbitrated implementing agreement. If the Recipient fails to demonstrate
that the intended action is a trackage rights, lease proceeding, or similar
transaction, it shall be the burden of the Recipient to prove that under the
standards and criteria referenced above, the intended action should be permitted
to be instituted prior to the effective date of a negotiated or arbitrated implementing
agreement. For purposes of any such arbitration, the time period within which
the parties are to respond to the list of potential arbitrators submitted by
the American Arbitration Association (as provided under Labor Arbitration Rule
12) shall be reduced from ten (10) to five (5) days, the notice of hearing (as
provided under Labor Arbitration Rule 19) may be given orally or by facsimile,
the hearing will be held promptly, and (notwithstanding any contrary provision
of Labor Arbitration Rule 37) the award of the arbitrator shall be rendered
promptly and, unless otherwise agreed to by the parties, no later than fourteen
(14) days from the date of closing the hearings, with five (5) additional days
for mailing if posthearing briefs are requested by either party. The intended
change shall not be instituted during the pendency of any arbitration proceedings
under this subparagraph (d).
(2)(e) If an intended change within the purview of this paragraph (2) is instituted
before an implementing agreement is reached or a final arbitration decision
is rendered pursuant to subparagraph (c), all employees affected shall be kept
financially whole, as if the noticed and implemented action has not take place,
from the time they are affected until the effective date of an implementing
agreement or final arbitration decision. This protection shall be in addition
to the protective period defined in paragraph (14) of the National (Model) Section
13(c) Agreement executed July 23, 1975, which period shall begin on the effective
date of the implementing agreement or final arbitration decision rendered pursuant
to subparagraph (c).
An employee selecting, bidding or hired to fill any position established as
a result of a noticed and implemented action prior to the consummation of an
implementing agreement or final arbitration decision shall accumulate no benefits
under this arrangement as a result thereof during that period prior to the consummation
of an implementing agreement or final arbitration decision pursuant to subparagraph
(c).
(3) For the purpose of providing the statutory required protections including
those specifically mandated by 49 U.S.C, Section 5333(b)1, the Recipient
agrees to be bound by the terms and conditions of the National (Model) Section
13(c) Agreement executed July 23, 1975.2
(4) Any dispute, claim, or grievance arising from or relating to the interpretation,
application or enforcement of the provisions of this arrangement, not otherwise
governed by Section 12(c) of the Model Agreement, the Labor-Management Relations
Act, as amended, Railway Labor Act, as amended, or by impasse resolution provisions
in a collective bargaining or protective arrangement involving the Recipient
and the Union, which cannot be settled by the parties thereto within thirty
(30) days after the dispute or controversy arises, may be submitted at the written
request of the Recipient or the union to arbitration administered by the American
Arbitration Association under its Labor Arbitration Rules. The parties further
agree to accept the arbitrator’s award as final and binding.
In the event of any dispute as to whether or not a particular employee was
affected by the Project, it shall be his/her obligation to identify the Project
and specify the pertinent facts of the Project relied upon. It shall then be
the burden of the Recipient to prove that factors other than the Project affected
the employee. The claiming employee shall prevail if it is established that
the Project had an effect upon the employee even if other factors may also have
affected the employee.
(5) The Recipient will be financially responsible for the application of these
conditions and will make the necessary arrangements so that any employee covered
by these arrangements, or the union representative of such employee, may file
claim of violation of these arrangements with the Recipient within sixty (60)
days of the date he/she is terminated or laid off as a result of the Project,
or within eighteen (18) months of the date his/her position with respect to
his/her employment is otherwise worsened as a result of the Project. In the
latter case, if the events giving rise to the claim have occurred over an extended
period, the 18-month limitation shall be measured from the last such event.
No benefits shall be payable for any period prior to six (6) months from the
date of the filing of any claim.
(6) Nothing in this arrangement shall be construed as depriving any employee
of any rights or benefits which such employee may have under existing employment
or collective bargaining agreements, nor shall this arrangement be deemed a
waiver of any rights of any union or of any represented employee derived from
any other agreement or provision of federal, state or local law.
(7) In the event any employee covered by these arrangements is terminated or
laid off as a result of the Project, he shall be granted priority of employment
or reemployment to fill any vacant position within the jurisdiction and control
of the Recipient, including those in the employment of any entity bound by this
arrangement pursuant to paragraph (11) hereof, for which he is, or by training
or retraining within a reasonable period, can become qualified. In the event
training or retraining is required by such employment or reemployment, the Recipient
shall provide or provide for such training or retraining at no cost to the employee.
(8) The Recipient will post, in a prominent and accessible place, a notice
stating that the Recipient has received federal assistance under the Federal
Transit statute and has agreed to comply with the provisions of 49 U.S.C., Section
5333(b). This notice shall also specify the terms and conditions set forth herein
for the protection of employees. The Recipient shall maintain and keep on file
all relevant books and records in sufficient detail as to provide the basic
information necessary to the proper application, administration, and enforcement
of these arrangements and to the proper determination of any claims arising
thereunder.
(9) The Recipient(s) and the labor organization(s) referenced in the second
introductory paragraph of this arrangement shall be deemed a party to these
arrangements.
(10) In the event the Project is approved for assistance under the statute,
the foregoing terms and conditions shall be made part of the contract of assistance
between the federal government and the applicant for federal funds and between
the applicant and any recipient of federal funds; provided, however, that this
arrangement shall not merge into the contract of assistance, but shall be independently
binding and enforceable by and upon the parties thereto, and by any covered
employee or his/her representative, in accordance with its terms, nor shall
any other employee protective agreement merge into this arrangement, but each
shall be independently binding and enforceable by and upon the parties thereto,
in accordance with its terms.
(11) This arrangement shall be binding upon the successors and assigns of the
parties hereto, and no provisions, terms, or obligations herein contained shall
be affected, modified, altered, or changed in any respect whatsoever by reason
of the arrangements made by or for the Recipient to manage and operate the system.
Any person, enterprise, body, or agency, whether publicly - or privately-owned,
which shall undertake the management, provision and/or operation of the Project
services or the Recipient’s transit system, or any part or portion thereof,
under contractual arrangements of any form with the Recipient, its successors
or assigns, shall agree to be bound by the terms of this arrangement and accept
the responsibility with the Recipient for full performance of these conditions.
As a condition precedent to any such contractual arrangements, the Recipient
shall require such person, enterprise, body or agency to so agree.
"
(3) All rights, privileges, and benefits (including pension rights and benefits)
of employees covered by this agreement (including employees having already retired)
under existing collective bargaining agreements or otherwise, or under any revision
or renewal thereof, shall be preserved and continued; provided, however, that
such rights, privileges and benefits which are not foreclosed from further bargaining
under applicable law or contract may be modified by collective bargaining and
agreement by the Recipient and the union involved to substitute other rights,
privileges and benefits. Unless otherwise provided, nothing in this agreement
shall be deemed to restrict any rights the Recipient may otherwise have to direct
the working forces and manage its business as it deemed best, in accordance
with the applicable collective bargaining agreement.
(4) The collective bargaining rights of employees covered by this agreement,
including the right to arbitrate labor disputes and to maintain union security
and checkoff arrangements, as provided by applicable laws, policies and/or existing
collective bargaining agreements, shall be preserved and continued.* Provided,
however, that this provision shall not be interpreted so as to require the Recipient
to retain any such rights which exist by virtue of a collective bargaining agreement
after such agreement is no longer in effect.
The Recipient agrees that it will bargain collectively with the union or otherwise
arrange for the continuation of collective bargaining, and that it will enter
into agreement with the union or arrange for such agreements to be entered into,
relative to all subjects which are or may be proper subjects of collective bargaining.
If, at any time, applicable law or contracts permit or grant to employees covered
by this agreement the right toutilize any economic measures, nothing in this
agreement shall be deemed to foreclose the exercise of such right.
(6)(a) Whenever an employee, retained in service, recalled to service, or
employed by the Recipient pursuant to paragraphs (5), (7)(e), or (18) hereof
is placed in a worse position with respect to compensation as a result of the
Project, he shall be considered a "displaced employee", and shall
be paid a monthly "displacement allowance" to be determined in accordance
with this paragraph. Said displacement allowance shall be paid each displaced
employee during the protective period so long as the employee is unable, in
the exercise of his seniority rights, to obtain a position producing compensation
equal to or exceeding the compensation he received in the position from which
he was displaced, adjusted to reflect subsequent general wage adjustments, including
cost of living adjustments where provided for.
(b) The displacement allowance shall be a monthly allowance determined by computing
the total compensation received by the employee, including vacation allowances
and monthly compensation guarantees, and his total time paid for during the
last twelve (12) months in which he performed compensated service more than
fifty per centum of each such months, based upon his normal work schedule, immediately
preceding the date of his displacement as a result of the Project, and by dividing
separately the total compensation and the total time paid for by twelve, thereby
producing the average monthly compensation and the average monthly time paid
for. Such allowance shall be adjusted to reflect subsequent general wage adjustments,
including cost of living adjustments where provided for. If the displaced employee's
compensation in his current position is less in any month during his protective
period than the aforesaid average compensation (adjusted to reflect subsequent
general wage adjustments, including cost of living adjustments where provided
for), he shall be paid the difference, less compensation for any time lost on
account of voluntary absences to the extent that he is not available for service
equivalent to his average monthly time, but he shall be compensated in addition
thereto at the rate of the current position for any time worked in excess of
the average monthly time paid for. If a displaced employee fails to exercise
his seniority rights to secure another position to which he is entitle under
the then existing collective bargaining agreement, and which carriers a wage
rate and compensation exceeding that of the position which he elects to retain,
he shall thereafter be treated, for the purposes of this paragraph, as occupying
the position he elects to decline.
(c) The displacement allowance shall cease prior to the expiration of the protective
period in the event of the displaced employee's resignation, death, retirement,
or dismissal for cause in accordance with any labor agreement applicable to
his employment.
(7)(a) Whenever any employee is laid off or otherwise deprived of employment
as a result of the Project, in accordance with any collective bargaining agreement
applicable to his employment, he shall be considered a "dismissed employee"
and shall be paid a monthly dismissal allowance to be determined in accordance
with this paragraph. Said dismissal allowance shall first be paid each dismissed
employee on the thirtieth (30th) day following the day on which he is "dismissed"
and shall continue during the protective period, as follow:
Employee's length of
service
prior to adverse effect
Period
of protection
1 day to 6years
equivalent
period
6
years or more
6
years
The monthly dismissal allowance shall be equivalent to one-twelfth (1/12th)
of the total compensation received by him in the last twelve (12) months of
his employment in which he performed compensation service more than fifty per
centum of each such months based on his normal work schedule to the date on
which he was first deprived of employment as a result of the Project. Such allowance
shall be adjusted to reflect subsequent general wage adjustments, including
cost of living adjustments where provided for.
(b) An employee shall be regarded as deprived of employment and entitled to
a dismissal allowance when the position he holds is abolished as a result of
the Project, or when the position he holds is not abolished but he loses that
position as a result of the exercise of seniority rights by an employee whose
position is abolished as a result of the Project or as a result of the exercise
of seniority rights by other employees brought about as a result of the Project,
and he is unable to obtain another position, either by the exercise of his seniority
rights, or through the Recipient, in accordance with subparagraph (e). In the
absence of proper notice followed by an agreement or decision pursuant to paragraph
(5) hereof, no employee who has been deprived of employment as a result of the
Project shall be required to exercise his seniority rights to secure another
position in order to qualify for a dismissal allowance hereunder.
(c) Each employee receiving a dismissal allowance shall keep the Recipient
informed as to his current address and the current name and address of any other
person by whom he may be regularly employed, or if he is self-employed.
(d) The dismissal allowance shall be paid to the regularly assigned incumbent
of the position abolished. If the position of an employee is abolished when
he is absent from service, he will be entitled to the dismissal allowance when
he is available for service. The employee temporarily filling said position
at the time it was abolished will be given a dismissal allowance on the basis
of that position, until the regular employee is available for service, and thereafter
shall revert to his previous status and will be given the protections of the
agreement in said position, if any are due him.
(e) An employee receiving a dismissal allowance shall be subject to call to
return to service by his former employer after being notified in accordance
with the terms of the then-existing collective bargaining agreement. Prior to
such call to return to work by his employer, he may be required by the Recipient
to accept reasonably comparable employment for which he is physically and mentally
qualified, or for which he can become qualified after a reasonable training
or retraining period,provided it does not require a change in residence or infringe
upon the employment rights of other employees under then-existing collective
bargaining agreements.
(f) When an employee who is receiving a dismissal allowance again commences
employment in accordance with subparagraph (e) above, said allowance shall cease
while he is so reemployed, and the period of time during which he is so reemployed
shall be deducted from the total period for which he is entitled to receive
a dismissal allowance. During the time of such reemployment, he shall be entitled
to the protections of this agreement to the extent they are applicable.
(g) The dismissal allowance of any employee who is otherwise employed shall
be reduced to the extent that his combined monthly earnings from such other
employment or self-employment, any benefits received from any unemployment insurance
law, and his dismissal allowance exceed the amount upon which his dismissal
allowance is based. Such employee, or his union representative, and the Recipient
shall agree upon a procedure by which the Recipient shall be kept currently
informed of the earnings of such employee in employment other than with his
former employer, including self-employment, and the benefits received.
(h) The dismissal allowance shall cease prior to the expiration of the protective
period in the event of the failure of the employee without good cause to return
to service in accordance with the applicable labor agreement, or to accept employment
as provided under subparagraph (e) above, or in the event of his resignation,
death, retirement, or dismissal for cause in accordance with any labor agreement
applicable to his employment.
(i) A dismissed employee receiving a dismissal allowance shall actively seek
and not refuse other reasonably comparable employment offered him for which
he is physically and mentally qualified and does not require a change in his
place of residence. Failure of the dismissed employee to comply with this obligation
shall be grounds for discontinuance of his allowance;provided that said dismissal
allowance shall not be discontinued until final determination is made either
by agreement between the Recipient and the employee or his representative, or
by final arbitration decision rendered in accordance with paragraph (15) of
this agreement that such employee did not comply with this obligation.
(8) In determining length of service of a displaced or dismissed employee for
purposes of this agreement, such employee shall be given full service credits
in accordance with the records and labor agreements applicable to him and he
shall be given additional service credits for each month in which he receives
a dismissal or displacement allowance as if he were continuing to perform services
in his former position.
(9) No employee shall be entitled to either a displacement or dismissal allowance
under paragraphs (6) or (7) hereof because of the abolishment of a position
to which, at some future time, he could have bid, been transferred, or promoted.
(10) No employee receiving a dismissal or displacement allowance shall be deprived,
during his protected period, of any rights, privileges, or benefits attaching
to his employment, including, without limitation, group life insurance, hospitalization
and medical care, free transportation for himself and his family, sick leave,
continued status and participation under any disability or retirement program,
and such other employee benefits as Railroad Retirement, Social Security, Workmen's
Compensation, and unemployment compensation, as well as any other benefits to
which he may be entitled under the same conditions and so long as such benefits
continue to be accorded to other employees of the bargaining unit, in active
service or furloughed as the case may be.
(11)(a) Any employee covered by this agreement who is retained in the service
of his employer, or who is later restored to service after being entitled to
receive a dismissal allowance, and who is required to change the point of his
employment in order to retain or secure active employment with the Recipient
in accordance with this agreement, and who is required to move his place of
residence, shall be reimbursed for all expenses of moving his household and
other personal effects, for the travelling expenses for himself and members
of his immediate family, including living expenses for himself and his immediate
family, and for his own actual wage loss during the time necessary for such
transfer and for a reasonable time thereafter, not to exceed five (5) working
days. The exact extent of the responsibility of the Recipient under this paragraph,
and the ways and means of transportation, shall be agreed upon in advance between
the Recipient and the affected employee or his representatives.
(b) If any such employee is laid off within three (3) years after changing
his point of employment in accordance with paragraph (a) hereof, and elects
to move his place of residence back to his original point of employment, the
Recipient shall assume the expenses, losses and costs of moving to the same
extent provided in subparagraph (a) of this paragraph (11) and paragraph (12)(a)
hereof.
(c) No claim for reimbursement shall be paid under the provisions of this paragraph
unless such claim is presented to the Recipient within ninety (90) days after
the date on which the expenses were incurred.
(d) Except as otherwise provided in subparagraph (b), changes in place of residence,
subsequent to the initial changes as a result of the Project, which are not
a result of the Project but grow out of the normal exercise of seniority rights,
shall not be considered within the purview of this paragraph.
(12)(a) The following conditions shall apply to the extent they are applicable
in each instance to any employee who is retained in the service of the employer
(or who is later restored to service after being entitled to receive a dismissal
allowance), who is required to change the point of his employment as a result
of the Project, and is thereby required to move his place of residence.
If the employee owns his own home in the locality from which he is required
to move, he shall, at his option, be reimbursed by the Recipient for any loss
suffered in the sale of his home for less than its fair market value, plus conventional
fees and closing costs, such loss to be paid within thirty (30) days of settlement
or closing on the sale of the home. In each case, the fair market value of the
home in question shall be determined, as of a date sufficiently prior to the
date of the Project, so as to be unaffected thereby. The Recipient shall, in
each instance, be afforded an opportunity to purchase the home at such fair
market value before it is sold by the employee to any other person and to reimburse
the seller for his conventional fees and closing costs.
If the employee is under a contract to purchase his home, the Recipient shall
protect him against loss under such contract, and in addition, shall relieve
him from any further obligation thereunder.
If the employee holds an unexpired lease of a dwelling occupied by him as his
home, the Recipient shall protect him from all loss and cost in securing the
cancellation of said lease.
(b) No claim for loss shall be paid under the provisions of this paragraph
unless such claim is presented to the Recipient within one year after the effective
date of the change in residence.
(c) Should a controversy arise in respect to the value of the home, the loss
sustained in its sale, the loss under a contract for purchase, loss and cost
in securing termination of a lease, or any other question in connection with
these matters, it shall be decided through a joint conference between the employee,
or his union, and the Recipient. In the event they are unable to agree, the
dispute or controversy may be referred by the Recipient or the union to a board
of competent real estate appraisers selected in the following manner: one (1)
to be selected by the representatives of the employee, and one (1) by the Recipient,
and these two, if unable to agree within thirty (30) days upon the valuation,
shall endeavor by agreement with ten (10) days thereafter to select a third
appraiser or to agree to a method by which a third appraiser shall be selected,
and failing such agreement, either party may request the State and local Board
of Real Estate Commissioners to designate within ten (10) days a third appraiser,
whose designation will be binding upon the parties and who jurisdiction shall
be limited to determination of the issues raised in this paragraph only. A decision
of a majority of the appraisers shall be required and said decision shall be
final, binding, and conclusive. The compensation and expenses of the neutral
appraiser including expenses of the appraisal board, shall be borne equally
by the parties to the proceedings. All other expenses shall be paid by the party
incurring them, including the compensation of the appraiser selected by such
party.
(d) Except as otherwise provided in paragraph (11)(b) hereof, changes in place
of residence, subsequent to the initial changes as a result of the Project,
which are not a result of the Project but grow out of the normal exercise of
seniority rights, shall not be considered within the purview of this paragraph.
(e) "Change in residence" means transfer to a work location which
is either (A) outside a radius of twenty (20) miles of the employee's former
work location and farther from his residence
than was his former work location, or (B) is more than thirty (30) normal highway
route miles from his residence and also farther from his residence than was
his former work location.
(13) A dismissed employee entitled to protection under this agreement may,
at his option within twenty-one (21) days of his dismissal, resign and (in lieu
of all other benefits and protections provided in this agreement) accept a lump
sum payment computed in accordance with section (9) of the Washington Job Protection
Agreement of May 1936:
Length
of Service
Separation
Allowance
1
year and less than 2 years
3 months' pay
2
" " " " 3
"
6 "
"
3 "
" " " 5
"
9 "
"
5
" " " "
10 "
12 " "
10 "
" " "
15 "
12 " "
15 "
" over
12 "
"
In the case of an employee with less than one year's service, five days' pay,
computed by multiplying by 5 the normal daily earnings (including regularly
scheduled overtime, but excluding other overtime payments) received by the employee
in the position last occupied, for each month in which he performed service,
will be paid as the lump sum.
(a) Length of service shall be computed as provided in Section 7(b) of the
Washington Job Protection Agreement, as follows:
For the purposes of this agreement, the length of service of the employee shall
be determined from the date he last acquired an employment status with the employing
carrier and he shall be given credit for one month's service for each month
in which he performed any service (in any capacity whatsoever) and twelve (12)
such months shall be credited as one year's service. The employment status of
an employee shall not be interrupted by furlough in instances where the employee
has a right to and does return to service when called. In determining length
of service of an employee acting as an officer or other official representative
of an employee organization, he will be given credit for performing service
while so engaged on leave of absence from the service of a carrier.
(b) One month's pay shall be computed by multiplying by 30 the normal daily
earnings (including regularly scheduled overtime, but excluding other overtime
payments) received by the employee in the position last occupied prior to time
of his dismissal as a result of the Project.
(14) Whenever used herein, unless the context requires otherwise, the term
"protective period" means that period of time during which a displaced
or dismissed employee is to be provided protection hereunder and extends from
the date on which an employee is displaced or dismissed to the expiration of
six (6) years therefrom, provided, however, that the protective period for any
particular employee during which he is entitled to receive the benefits of these
provisions shall not continue for a longer period following the date he was
displaced or dismissed than the employee's length of service, as shown by the
records and labor agreements applicable to his employment prior to the date
of his displacement or his dismissal.
(16) Nothing in this agreement shall be construed as depriving any employee
of any rights or benefits which such employee may have under any existing job
security or other protective conditions or arrangements by collective bargaining
agreement or law where applicable, including P.L. 93-236, enacted January 2,
1974; provided that there shall be no duplication of benefits to any employees,
and, provided further, that any benefit under the agreement shall be construed
to include the conditions, responsibilities, and obligations accompanying such
benefits.
(17) The Recipient shall be financially responsible for the application of
these conditions and will make the necessary arrangements so that any employee
affected as a result of the Project may file a claim through his union representative
with the Recipient within sixty (60) days of the date he is terminated or laid
off as a result of the Project, or within eighteen (18) months of the date his
position with respect to his employment is otherwise worsened as a result of
the Project; provided, in the latter case, if the events giving rise to the
claim have occurred over an extended period, the 18-month limitation shall be
measured from the last such event; provided, further, that no benefits shall
be payable for any period prior to six (6) months from the date of the filing
of the claim. Unless such claims are filed with the Recipient with said time
limitations, the Recipient shall thereafter be relieved of all liabilities and
obligations related to said claims. The Recipient will fully honor the claim,
making appropriate payments, or will give notice to the claimant and his representative
of the basis for denying or modifying such claim, giving reasons therefor. In
the event the Recipient fails to honor such claim, the Union may invoke the
following procedures for further joint investigation of the claim by giving
notice in writing of its desire to pursue such procedures. Within ten (10) days
from the receipt of such notice, the parties shall exchange such factual material
as may be requested of them relevant to the disposition of the claim and shall
jointly take such steps as may be necessary or desirable to obtain from any
third party such additional factual materials as may be relevant. In the event
the claim is so rejected by the Recipient, the claim may be processed to arbitration
as hereinabove provided by paragraph (15). Prior to the arbitration hearing,
the parties shall exchange a list of intended witnesses.
In conjunction with such proceedings, the impartial arbitrator shall have the
power to subpoena witnesses upon the request of any party and to compel the
production of documents and other information denied in the pre-arbitration
period which is relevant to the disposition of the claim.
Nothing included herein as an obligation of the Recipient shall be construed
to relieve any other urban mass transportation employer of the employees covered
hereby of any obligations which it has under existing collective bargaining
agreements, including but not limited to obligations arising from the benefits
referred to in paragraph (10) hereof, nor make any such employer a third-party
beneficiary of the Recipient's obligations contained herein, nor deprive the
Recipient of any right of subrogation.
(18) During the employee's protective period, a dismissed employee shall, if
he so requests, in writing, be granted priority of employment to fill any vacant
position within the jurisdiction and control of the Recipient, reasonably comparable
to that which he held when dismissed, for which he is, or by training or retraining
can become, qualified; not, however, in contravention of collective bargaining
agreements related thereto. In the event such employee requests such training
or re-training to fill such vacant position, the Recipient shall provide for
such training or re-training at no cost to the employee. The employee shall
be paid the salary or hourly rate provided for in the applicable collective
bargaining agreement for such position, plus any displacement allowance to which
he may be otherwise entitled. If such dismissed employee who has made such request
fails, without good cause, within ten (10) days to accept an offer of a position
comparable to that which he held when dismissed for which he is qualified, or
for which he has satisfactorily completed such training, he shall, effective
at the expiration of such ten-day period, forfeit all rights and benefits under
this agreement.
As between employees who request employment pursuant to this paragraph, the
following order where applicable shall prevail in hiring such employees:
(a) Employees in the craft or class of the vacancy shall be given priority
over employees without seniority in such craft or class;
(b) As between employees having seniority in the craft or class of the vacancy,
the senior employees, based upon their service in that craft or class, as shown
on the appropriate seniority roster, shall prevail over junior employees;
(c) As between employees not having seniority in the craft or class of the
vacancy, the senior employees, based upon their service in the crafts or classes
in which they do have seniority as shown on the appropriate seniority rosters,
shall prevail over junior employees.
(20) The employees covered by this agreement shall continue to receive any
applicable coverage under Social Security, Railroad Retirement, Workmen's Compensation,
unemployment compensation, and the like. In no event shall these benefits be
worsened as a result of the Project.
(21) In the event any provision of this agreement is held to be invalid, or
otherwise unenforceable under the federal, State, or local law, in the context
of a particular Project, the remaining provisions of this agreement shall not
be affected and the invalid or unenforceable provision shall be renegotiated
by the Recipient and the interested union representatives of the employees involved
for purpose of adequate replacement under 5333(b) of the Act. If such negotiation
shall not result in mutually satisfactory agreement, any party may invoke the
jurisdiction of the Secretary of Labor to determine substitute fair and equitable
employee protective arrangements for application only to the particular Project,
which shall be incorporated in this agreement only as applied to that Project,
and any other appropriate action, remedy, or relief.
(25) If any employer of the employees covered by this agreement shall have
rearranged or adjusted its forces in anticipation of the Project, with the effect
of depriving an employee of benefits to which he should be entitled under this
agreement, the provisions of this agreement shall apply to such employee as
of the date when he was so affected.
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